THE CONSTITUTION (THIRTY-EIGHTH AMENDMENT) ACT, 1975

Statement of Objects and Reasons appended to the Constitution
       (Thirty-ninth Amendment) Bill, 1975 which was enacted as
         the Constitution (Thirty-eighth Amendment) Act, 1975

                   STATEMENT OF OBJECTS AND REASONS

The  Constitution  (Thirty-ninth Amendment) Bill, 1975 seeks to  amend
articles 123, 213, 239B, 352, 356, 359 and 360 of the Constitution.

2.   Article 123 empowers the President to promulgate Ordinances  when
both  the  Houses of Parliament are not in session if he is  satisfied
that  circumstance  exist  rendering it necessary  to  take   immediate
action.   Corresponding powers have been conferred by the Constitution
on the Governor under article 213.  Similar powers have been conferred
on  the  Administrator  under article 239B when the Legislature  of   a
Union  territory is not in session.  On the plain language of articles
123, 213 and 239B there is no doubt that the satisfaction mentioned in
those  articles  is  subjective  satisfaction   and   that  it  is  not
justiciable.   There  is no doubt that this was also the intention  of
the  makers  of  the  Constitution.  However,  litigation   is  pending
involving  the justificability of this issue and contentions are being
raised  that the issue is subject to judicial scrutiny.  To place  the
matter  beyond  doubt, it is proposed to provide in  the  Constitution
that  the  satisfaction  of the President, Governor  or   Administrator
shall be final and conclusive and shall not be questioned in any court
on any ground.

3.   Article 352 empowers the President to declare Emergency if he  is
satisfied  that the security of India or any part of it is  threatened
by  war,  external  aggression or internal disturbance.   Article   356
empowers  the  President  to assume to himself the  functions  of   the
Government  of  a State if the constitutional machinery in  any  State
fails  and the Government in the State cannot be carried on.  Likewise
article  360 empowers the President to declare Financial Emergency  if
he  is satisfied that the financial stability of India is  threatened.
Here  again,  the issue regarding satisfaction is, on the face of  the
articles  clearly  not justiciable.  However, as the validity of  the
Proclamation  issued under article 352 has been challenged in  several
proceedings  and as litigation of this nature involves waste of public
time  and money, it is proposed to amend these three articles so as to
make  the  satisfaction of the President final and conclusive and  not
justiciable on any ground.

4.   In  addition  to  article 352, contentions have  been  raised  in
certain  writ  petitions  that  while  the  original   Proclamation  of
Emergency  is in operation no further Proclamation of Emergency  could
be  made thereunder.  In order to place the matter beyond doubt it  is
proposed  to make it clear in article 352 that the President may issue
different Proclamations on different grounds whether or not there is a
Proclamation already in existence and in operation.

5.  When a Proclamation of Emergency is in operation, the President is
empowered  under  article  359 of the Constitution to  make  an   order
suspending  the right to move any court for the enforcement of such of
the  rights  conferred by Part III as may be mentioned in that  order.
It  was  intended that the powers conferred by this article should  be
exercised during an emergency according to needs of the situation.  On
the  other  hand,  article 358 renders the provisions  of   article  19
automatically  inoperative  while the Proclamation of Emergency is  in
operation,  and  the  power to make any law or to take  any   executive
action  is  not  restricted by the provisions of  that  article.    The
intention  underlying article 359 appears to be that when an order  is
made under clause (1) of that article in relation to any of the rights
conferred  by  Part III and mentioned in the order, the order so  made
would  have for all practical purposes the same effect in relation  to
those  rights  as article 358 has in relation to article 19.   It   is,
therefore,  proposed  not to have any differences in language  between
article 358 and the language in respect of those rights only which may
be  mentioned  in the Presidential Order under clause (1)  of  article
359.

6. The Bill seeks to achieve the aforesaid objects.

NEW DELHI;                                      H. R. GOKHALE.

The 20th July, 1975.

THE CONSTITUTION (THIRTY-EIGHTH AMENDMENT) ACT, 1975

                                        [1st August, 1975.]

An Act further to amend the Constitution of India.

BE  it enacted by Parliament in the Twenty-sixth Year of the  Republic
of India as follows:-

1.    Short   title.-This   Act  may   be   called   the    Constitution
(Thirty-eighth Amendment) Act, 1975.

2.   Amendment  of  article 123.-In article 123 of  the  Constitution,
after clause (3), the following clause shall be inserted, and shall be
deemed always to have been inserted, namely:-

"(4)  Notwithstanding anything in this Constitution, the  satisfaction
of the President mentioned in clause (1) shall be final and conclusive
and shall not be questioned in any court on any ground.".

3.   Amendment  of  article 213.-In article 213 of  the  Constitution,
after clause (3), the following clause shall be inserted, and shall be
deemed always to have been inserted, namely:-

"(4)  Notwithstanding anything in this Constitution, the  satisfaction
of  the Governor mentioned in clause (1) shall be final and conclusive
and shall not be questioned in any court on any ground.".

4.   Amendment  of article 239B.-In article 239B of the  Constitution,
after clause (3), the following clause shall be inserted, and shall be
deemed always to have been inserted, namely:-

"(4)  Notwithstanding anything in this Constitution, the  satisfaction
of  the  administrator  mentioned  in clause (1) shall  be   final  and
conclusive and shall not be questioned in any court on any ground.".

5.   Amendment  of  article 352.-In article 352 of  the  Constitution,
after  clause (3), the following clauses shall be inserted, and  shall
be deemed always to have been inserted, namely:-

"(4)  The  power  conferred  on the President by  this  article  shall
include  the  power  to  issue different  Proclamations  on   different
grounds,  being war or external aggression or internal disturbance  or
imminent danger of war or external aggression or internal disturbance,
whether or not there is a Proclamation already issued by the President
under clause (1) and such Proclamation is in operation.

(5) Notwithstanding anything in this Constitution,-

(a)  the  satisfaction  of the President mentioned in clause  (1)  and
clause  (3) shall be final and conclusive and shall not be  questioned
in any court on any ground;

(b) subject to the provisions of clause (2), neither the Supreme Court
nor any other court shall have jurisdiction to entertain any question,
on any ground, regarding the validity of-

(i)  a declaration made by Proclamation by the President to the effect
stated in clause (1);  or

(ii) the continued operation of such Proclamation.".

6.   Amendment  of  article 356.-In article 356 of  the  Constitution,
after clause (4), the following clause shall be inserted, and shall be
deemed always to have been inserted, namely:-

"(5)  Notwithstanding anything in this Constitution, the  satisfaction
of the President mentioned in clause (1) shall be final and conclusive
and shall not be questioned in any court on any ground.".

7.   Amendment  of  article 359.-In article 359 of  the  Constitution,
after clause (1), the following clause shall be inserted, and shall be
deemed always to have been inserted, namely:-

"(1A) While an order made under clause (1) mentioning any of the right
conferred by Part III is in operation, nothing in that Part conferring
those  rights shall restrict the power of the State as defined in  the
said  Part  to make any law or to take any executive action which  the
State would but for the provisions contained in that Part be competent
to  make  or to take, but any law so made shall, to the extent of  the
incompetency,  cease  to  have effect as soon as the  order   aforesaid
ceases  to  operate, except as respects things done or omitted  to  be
done before the law so ceases to have effect.".

8.   Amendment  of  article 360.-In article 360 of  the  Constitution,
after clause (4), the following clause shall be inserted, and shall be
deemed always to have been inserted, namely:-

"(5) Notwithstanding anything in this Constitution,-

(a) the satisfaction of the President mentioned in clause (1) shall be
final  and conclusive and shall not be questioned in any court on  any
ground;

(b) subject to the provisions of clause (2), neither the Supreme Court
nor any other court shall have jurisdiction to entertain any question,
on any ground, regarding the validity of-

(i)  a declaration made by Proclamation by the President to the effect
stated in clause (1);  or

(ii) the continued operation of such Proclamation.".